Cr. Appeal (SJ) No.1186 & 1165 of 2006 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.Appeal (SJ) No. 1186 of 2006 ------ 1. Devid Kishku Son of Sakal Kishku. 2. Shiblal Kisku Son of Late Doman Kisku. 3. Manager Hembram Son of Late Satu Hembrom, Both are residents of Bhenta Tola, P.S. Maheshpur, District-Pakur. .... …. Appellant(s) Versus The State of Jharkhand ..... .... Respondent With Cr. Appeal (SJ) No.1165 of 2006 ------ 1. Girish Hembrom, Son of late Satu Hembrom 2. Sushil Hembrom, Son of late Setu Hembrom. .... …. Appellant(s) Versus The State of Jharkhand ..... .... Respondent ------ For the Appellant(s) : Mr. Niraj Nayan Mishra, Amicus Curiae (In both cases) For the State : Mr. Prabir Kumar Chatterjee, A.P.P. (In both cases) PRESENT Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ----- JUDGMENT Date:- 10.01.2025 By Court:- Heard Mr. Niraj Nayan Mishra, Amicus Curiae appearing for the appellants as well as Mr. Prabir Kumar Chatterjee appearing for the State. 2. Both criminal appeals are directed against the judgment and order of conviction and sentence dated 01.08.2006 passed by learned Sessions Judge, Pakur in Sessions Case No. 34 of 2002, whereby and whereunder the appellants have been held guilty for the Cr. Appeal (SJ) No.1186 & 1165 of 2006 2 offences under Sections 323 and 307/149 of the I.P.C. and all the appellants were sentenced to undergo R.I. for 4 years under Section 307/149 of the I.P.C., but no separate sentence was awarded for the offence under Section 323 of the I.P.C. due to their tribal status and poverty. Factual Matrix 3. The factual matrix giving rise to these appeals that the case was originated on the basis of the fardbeyan of the informant Hari Hembram recorded by the police inter alia stating that the informant had cut a branch of mango tree for the purpose of fire wood. On 30.09.2001 at about 05:00 PM, the accused (Devit Kishku) was removing some of the wood/branches, which was protested by the daughters of the informant. Upon which the accused (Devit Kishku) started abusing them. Hearing this, the other co-accused assembled there and started assaulting the daughter of the informant. The informant came at the place of occurrence after hearing hue and cry of his daughters to rescue them. It is further alleged by the informant that Manager Hembrom with intention to kill him, had given lathi blow on his head due to which, the informant fell down, and after falling down they continue to assault the informant. After the occurrence, the informant’s son, wife and other co-villagers took him to the hospital for treatment. 4. On the basis of the Fardbeyan of the informant, formal F.I.R. was registered as Maheshpur P.S. Case No. 64 of 2001 dated 01st Cr. Appeal (SJ) No.1186 & 1165 of 2006 3 October, 2022 for the offences under Sections 323, 341, 307, 504/34 of the Indian Penal Code. 5. After completion of investigation, charge-sheet under Sections 341, 323, 307, 504 read with Section 34 of the I.P.C. was submitted against the accused persons. 6. After the cognizance, the case was committed to the Court of Sessions where the charges under Section 323 and 307/34 I.P.C. were framed against the accused persons to which they pleaded not guilty and claimed to be tried. After conclusion of trial the appellants were held guilty and sentenced as stated above. 7. Learned counsel for the appellants submits that learned trial court has miserably failed to appreciate the evidence available on record. The prosecution has failed to prove the case beyond reasonable doubt to attract the ingredients of Section 307/34 of the Indian Penal Code. The accused persons are innocent and have been falsely implicated in this case due to previous enmity and further alleged that firstly the informant had assaulted to the wife of Sushil Hembrom (Appellant No.4) for which Maheshpur P.S. Case No. 65/01 under Sections 341, 323 and 379 I.P.C. was registered against the informant and other persons and this case is nothing but a counter-blast case to that case The prosecution witnesses, who have been examined, are not consistent with their statements and suffer from material contradictions. Therefore, conviction and sentence of appellants is liable to be set aside by allowing this appeal. Cr. Appeal (SJ) No.1186 & 1165 of 2006 4 8. In the alternative, it is submitted that appellants have undergone the substantial period of imprisonment during the trial of the case and have sufficiently been punished. Hence, their sentence may be reduced for the period undergone, if these convictions are sustained. 9. On the other hand, learned A.P.P. appearing for the State submitted that there is no legal force in the points of arguments raised on behalf of the appellants. The learned trial court has very wisely and aptly appraised and evaluated the evidence available on record and arrived at right conclusion. There are no merits in this appeal, which is fit to be dismissed. 10. I have gone through the record of the case along with the impugned judgment in the light of contentions of both side. 11. It appears that altogether ten witnesses were examined by the prosecution to substantiate the charges leveled against the accused/appellants:- P.W.1:-Pushpalata Hembrom is the injured daughter of the informant and in her evidence she has deposed that she and her sister had went for grazing cattle where the accused (Devit Kishku) without any reason came and started abusing and accused (Manager Hembrom) hit on her head and Devid Kishku assaulted on her back with Farsa and Shiblal Kishku assaulted her sister with the iron rod and also assaulted with intention to kill her father on his head with farsa. She has further deposed that they Cr. Appeal (SJ) No.1186 & 1165 of 2006 5 have sold their mango tree, to which accused Devid Kishku was removing and upon this she and her sister protested. In her cross-examination, this witness admits that she had not told the police that the accused persons had assaulted her brother by fists and fats and also admits that Biti Murmu has lodged the case on her father and others. She has refused that to save their skin, her father has lodged this case against counter case. P.W. 2 Dr. Suresh Ch. Sharma is the medical officer who has examined Hari Hembrom (informant) and found following injuries: - (i) A lacerated wound with blood clot dry on right frontal area of head, 3.5 C.M. x 5 C.M. x bone deep. (ii) A lacerated wound with dry blood clot on left frontal area of head 4.cm x 5 cm x bone deep. (iii) A lacerated wound with blood clot on right parietal area of head 2.5 cm x 2 cm x bone deep. (iv) Abrasion irregular with blood clot 4cm x 3 cm on the right side of back over scapular area. In his cross-examination, this witness admits that the injuries caused by hard and blunt substance which are simple in nature and the lacerated wound caused possibly by falling on hard surface. P.W.3 Dr. Shiv Kumar, is the medical officer who has examined the daughter and son of the informant namely (Sukana Hembram) Cr. Appeal (SJ) No.1186 & 1165 of 2006 6 and Subhash Tan and found following injuries in Sukana Hembrom:- (i) Linear swelling on back 5”x1” (ii) Swelling and tenderness on third finger of right leg. (iii) Tenderness on the neck. On the same day at 11:00 PM, he has examined the Subash Tan son of the informant and found several injuries: - (i) Swelling and tenderness on right scapula 3”x 2”. (ii) Swelling and tenderness on right lateral of head 3”x 1 ½” (iii) Tenderness on right wrist. In his cross-examination, this witness admits that the injuries caused to the injured persons are possibly caused by falling on hard surface. P.W.4 Hari Hembrom, is the informant and the most important witness. In his evidence he has stated that when he was working in his field, then his daughters and son were bringing back the cattle after grazing. In the way, accused persons armed with weapons surrounded them for assaulting and when he heard the commotion, he rushed to rescue them where the informant and his children were brutally assaulted by the accused persons. In his cross-examination, he has admitted that there was a land dispute between him and the accused persons. 12. I have given thoughtful consideration to every pros and cons of this case and find that the prosecution has miserably failed to prove the foundational facts for constituting the offence under Section 307 read Cr. Appeal (SJ) No.1186 & 1165 of 2006 7 with Section 149 of the I.P.C. which has been reluctantly ignored by the learned trial court without proper consideration. I further find that the ingredients of offence under Section 323 of the I.P.C. attract in this case for which the accused persons have already sufficiently been punished for their guilt during the trial of the case. Hence, the conviction and sentence of the appellants for the offence under Section 307/149 of the I.P.C. is hereby, set aside and their conviction for the appellant under Section 323 is affirmed with modification sentence to the period already undergone. Accordingly, this appeal is partly allowed. 13. Appellants are on bail, as such they are discharged from the liability of bail bond and sureties are also discharged. 14. Pending I.As, if any stands disposed of. 15. Let a copy of this judgment along with trial court record be sent to the concerned court forthwith for information and needful. (Pradeep Kumar Srivastava, J.) Jharkhand High Court at Ranchi Date:10/01/2025 Amar/- N.A.F.R.